For
years, Antoinette Marzorati suffered from head pain. After an
extended search for a remedy, she opted to undergo surgery to
cure her headaches in 2008. But the surgery made the problem
worse rather than better. Marzorati (along with her husband,
who is suing for loss of consortium) ultimately filed this
lawsuit in 2016, asserting claims of medical malpractice
against her surgeon and the hospital where she received
treatment, and negligence against the hospital. The
defendants have moved to dismiss, arguing that Marzorati
waited too long before suing and that, as a result, the
District of Columbia's three-year statute of limitations
for malpractice and negligence claims bars her case. For the
reasons discussed below, the Court agrees that some of
Marzorati's claims are barred by the statute of
limitations, but concludes that the bulk of her case may
proceed to discovery.

I.
BACKGROUND

For
purposes of the pending motion to dismiss, the Court will
accept the following facts, drawn from the amended complaint,
as true. See Am. Nat'l Ins. Co. v. FDIC, 642
F.3d 1137, 1139 (D.C. Cir. 2011).

Seeking
relief from head pain, Marzorati met with Dr. Ivica Ducic, a
physician specializing in plastic surgery and peripheral
nerve surgery, who was employed by defendants
MedStar-Georgetown Medical Center and MedStar Health. Dkt. 8
at 3 (Am. Compl. ¶¶ 7-8). Ducic recommended that
Marzorati undergo a surgical procedure known as an occipital
neurectomy, involving a bilateral decompression of the dorsal
and greater occipital nerves and bilateral transection of the
lesser occipital nerves. Id. (Am. Compl. ¶ 12).
He advised Marzorati that the operation would partially or
completely relieve her pain and that its “only
disadvantage” would be a “dime-sized area of
numbness behind each ear.” Id. at 4, 5 (Am.
Compl. ¶¶ 15, 23).

Marzorati
underwent the operation on January 5, 2008. Id. at 5
(Am. Compl. ¶ 21). After the procedure, “Marzorati
was left with severe, untreatable, and disabling pain,
” which she describes as “much worse” than
what she experienced before the surgery. Id. (Am.
Compl. ¶ 24). During a follow-up examination in April
2008, Marzorati informed Ducic that her pain “had
become worse after” the surgery. Id. (Am.
Compl. ¶ 26). In response, Ducic assured Marzorati that
her condition was “not unusual” and advised her
that “some people require a second surgery.”
Id. (Am. Compl. ¶ 25). Due to the increased
pain resulting from her first operation, Marzorati
“decided against [undergoing a] further
procedure.” Id. (Am. Compl. ¶ 27).

Marzorati
alleges that she “did not have notice of wrongdoing on
the part of Dr. Ducic” until March 2016, when she
searched online for articles about Ducic “because of
her continuing headache and pain.” Id. (Am.
Compl. ¶ 29). At that point, Marzorati “discovered
a webpage indicating that other people had filed lawsuits
against Dr. Ducic and the other [d]efendants for medical
malpractice for surgery similar to what . . . Marzorati
received.” Id. at 6 (Am. Compl. ¶ 30).
That webpage, according to Marzorati, was first published in
November 2014. Id. (Am. Compl. ¶ 32). On
October 28, 2016, Marzorati filed this action. See
Dkt. 1.

II.
ANALYSIS

The
parties agree that a three-year statute of limitations
applies to Marzorati's lawsuit, which asserts claims for
medical malpractice and negligence. Dkt. 9-1 at 6; Dkt. 10 at
2 (citing D.C. Code § 12-301(8)). They also agree that
the “discovery rule” applies in cases in which
the relationship between the plaintiff's injury and the
defendant's conduct is obscure. Dkt. 9-1 at 6; Dkt. 10 at
2. Under that rule, a claim does not accrue at the time of
injury but, instead, accrues at the time the plaintiff
“know[s] (or by the exercise of reasonable diligence
should know) (1) of the injury, (2) its cause in fact, and
(3) of some evidence of wrongdoing” by the alleged
tortfeasor. Bussineau v. President & Dirs. of
Georgetown Coll., 518 A.2d 423, 425 (D.C. 1986). In
assessing whether this test is satisfied, moreover, the Court
must consider the relevant stage of the proceeding. The D.C.
Circuit has held, for example, that summary judgment is
unavailable if a “genuine issue of material fact exists
as to the ultimate question of when [the plaintiff]
discovered or should have discovered [the defendant's]
alleged malpractice.” Byers v. Burelson, 713
F.2d 856, 861 (D.C. Cir. 1983); see also Williams v.
Mordkofsky, 901 F.2d 158, 162 (D.C. Cir. 1990). Because
the present dispute arises at the motion to dismiss stage,
defendants face an even higher hurdle. They are not entitled
to offer their own evidence-even if uncontested-but must
rely, instead, exclusively on the factual allegations
contained in Marzorati's complaint. See Abhe &
Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir.
2007). And, because a statute of limitations constitutes an
affirmative defense, see Fed. R. Civ. P. 8(c), they
cannot simply attack the sufficiency of the complaint.

Thus,
to prevail on their statute of limitations defense at this
early stage of the proceeding, defendants must demonstrate
that “the allegations [contained in Marzorati's
complaint affirmatively] show that relief is barred by the
applicable statute of limitations.” Jones v.
Bock, 549 U.S. 199, 215 (2007). They must show, in other
words, that the factual allegations of the complaint, read in
the light most favorable to Marzorati, establish that she
knew or should have known that she was injured, that the
occipital neurectomy procedure caused her injury, and that
there was “some evidence” that one or more of the
defendants was at fault. That is no easy task, and, under the
present circumstances, it is not one that permits dismissal
of the entire case. But, as explained below, defendants have
met this heavy burden with respect to one portion of
Marzorati's malpractice claim.

Marzorati's
claims fall into two general categories: claims that Ducic
failed to obtain her informed consent before performing the
surgery and her remaining claims, which assert, among other
things, that Ducic performed the surgery in a negligent or
reckless manner and that the hospital was negligent in its
hiring practices, training, supervision, and the provision of
medical services. Dkt. 8 at 6-9 (Am. Compl. ¶¶
36(a), 37, 44-45). With respect to her
lack-of-informed-consent claim, the Court concludes that the
factual allegations contained in Marzorati's own
complaint establish that she knew or should have known, as
early as April 2008, that Ducic and the hospital had failed
to inform her of the risk that the occipital neurectomy might
make her pain worse, rather than better. The same is not
true, however, with respect to her remaining claims.

Beginning
with Marzorati's lack-of-informed-consent claim, her
complaint alleges that, before the surgery, Ducic told her
“that the only disadvantage to performing the occipital
neurectomy would be a dime-sized area of numbness behind each
ear.” Id. at 4 (Am. Compl. ¶ 15). After
the surgery, however, when Marzorati “was left with
severe, untreatable, and disabling pain, ” Ducic told
her that “her condition was not unusual and that some
people require a second surgery.” Id. at 5
(Am. Compl. ¶¶ 24, 26). According to
Marzorati's own allegations, moreover, Ducic
“specifically instructed her at the follow-up
examination that her new pain was not an unexpected
consequence of the first procedure.” Id. (Am.
Compl. ¶ 28). Those twin allegations-first, that she was
told before the surgery that the “only
disadvantage” was the risk that she would experience a
small area of numbness and, second, that she was told
after the surgery that worsened pain was “not
an unexpected consequence”-form the core of her
lack-of-informed-consent claim. Marzorati's own
complaint, however, establishes that she was aware of both of
these facts as early as April 2008, when her follow-up
examination occurred. Id. at 4, 5 (Am. Compl.
¶¶ 15, 26, 28). Because Marzorati did not bring her
lack-of-informed-consent claim for another eight-and-a-half
years, and because she has failed to identify any reason to
believe that this information was insufficient to put her on
notice of (1) her corresponding injury (her worsened pain),
(2) its cause (her decision to undergo the surgery), and (3)
“some evidence of wrongdoing” by the defendants
(defendants' failure to warn her about the risk of
worsened pain), her lack-of-informed-consent claim is
time-barred as a matter of law.

That
same logic does not, however, extend to the remainder of
Marzorati's claims. Those claims allege, among other
things, that Ducic engaged in “[n]egligence, gross
negligence, and reckless and willful misconduct in performing
[the] occipital neurectomy, ” id. at 7 (Am.
Compl. ¶ 36(d)), and that the hospital was negligent in
hiring, training, and supervising Ducic, id. at 8-9
(Am. Compl. ¶¶ 44-45). Although Marzorati was
undoubtedly aware of her injury (worsened pain following her
surgery) in 2008, and although she did not bring suit within
three years of sustaining that injury, that is not enough for
defendants to prevail at this stage of the proceeding. To
prevail on a motion to dismiss, defendants must be able to
show that the allegations of the complaint themselves
foreclose Marzorati's reliance on the discovery rule.
They cannot satisfy that burden.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;To
start, it bears emphasis that the discovery rule applies with
special force in medical malpractice cases. As the D.C. Court
of Appeals has explained, this is because &ldquo;an
individual, more often than not, lacks the requisite
expertise to know whether the ill effects of a particular
medical treatment resulted from someone&#39;s wrongdoing,
rather than merely an inevitable or unforeseeable risk of
treatment.&rdquo; Bussineau, 518 A.2d at 430. That
difficulty is only heightened, moreover, when a doctor
&ldquo;provide[s] reassurances that the manifestations of
[an] &lsquo;injury&#39; are simply part of the normal healing
process.&rdquo; Id. at 426. Under those
circumstances, according to the D.C. Court of Appeals, it
asks too much to ...

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